286 (08) 3 KLR (EP) Ngethe v Njeru & another (No 2) High Court, at Nairobi November 6, 06 Visram J Election Petition No of 03 Election Petition evidence loss of evidentiary material loss of documents crucial for the hearing and determination of a petition Electoral Commission losing ballot boxes containing used and unused ballot papers, marked voters register, election results and other vital documents petitioner applying for an order that the petition was not capable of being determined and for an order that the Commission should pay the costs of the petition whether there was merit in the application whether such an application was allowed by law - National Assembly Elections (Election Petition) Rules rules 8, 9,. The petitioner moved the Court for an order that his petition was not capable of being tried and determined and for the Electoral Commission elections to be ordered to pay the costs of the petition. Commission of Kenya, it had been stated that the election materials and records for the Kiambaa Constituency parliamentary election had been lost. The lost materials which had been contained in sealed ballot boxes included used and blank ballot papers; the election results; declaration forms; spoilt ballot papers; counterfoils; a marked copy of the election register and complaint statements. In the absence of these materials, the petitioner stated, it was not possible for the Court to arrive at a fair decision. The petitioner s application was based on rules 8, 9 and of the National Assembly Elections (Election Petition) Rules. While the 2 nd respondent conceded that the loss of the materials prejudiced the hearing of the petition, the st respondent submitted that the application was not properly before the Court and that the rules under which it was made did not permit the Court to make an order in the nature of the one contained in the prayer. Held:
Ngethe v Njeru & another (No 2) (Visram J). The petitioner s application was properly before the Court. The fact that the Rules did not make provision for such an application would not leave a litigant without a remedy. 2. The petitioner had established that the petition could not be heard and determined in a fair and just manner and that it would not be possible for him to properly prosecute his petition in the absence of the vital documents which by law are required to be placed before the Court within 48 hours before the hearing of the petition. 3. On the question of costs, the blame lay with the st respondent in whose custody the lost documents had been placed and because of whose negligence they disappeared. Application allowed, the st respondent to bear the costs of all the parties to the petition. Cases No cases referred to. Statutes. National Assembly Elections (Election Petition) Rules, 993 (cap 7 Sub Leg) rules 8, 8-, 9 2. Election Offences Act (cap 66) Advocates Mr Ndamberi for the Petitioner. Mr Kulecho for the st Respondent. Mr Ngatia for the 2 nd Respondent 287 November 6, 06, Visram J delivered the following Ruling. This rather unusual application before me is for an order that this election petition is untriable and undeterminable and the Electoral Commission st respondent, to be condemned to pay the costs of the petition. It arises out of equally unusual circumstances leading to the loss or misplacement of election materials and records for the Kiambaa sworn the 6 th March, 06, Mr Daniel Mosomi, Procurement and Supplies Manager with the Electoral Commission of Kenya, has deponed that the relevant records and materials have been lost. The petitioner now says that in the absence of those materials, he is unable to prosecute this petition, and it is not possible for this Court to arrive at a fair and just decision. The ECK s inability to present these materials before the Court,
288 (08) 3 KLR (EP) in accordance with rule 9 of the National Assembly Elections (Election Petition) Rules, 993 (Cap 7) (hereinafter the Rules ) has considerably prejudiced his case, and accordingly it is his submission that this trial cannot, and should not be allowed to proceed, and that the ECK, in whose custody these materials were placed, and who negligently lost the same, should be called upon to pay the costs of this petition. As it was not clear to this Court, exactly what documents and materials were lost, and their precise relevance to the petition herein, the Court invited the st of these materials, and providing the Court with an inventory. He did so, of the missing documents. The hearing of the application resumed on 6 th October, 06, now with th August, 06, 8 sealed ballot boxes containing the following documents have been lost, and are unavailable to this Court: (a) Election results from all the polling stations within Kiambaa Constituency (b) Declaration forms which indicate how elections were contacted (sic) (c) Complaints statements (if any) (d) Ballot papers (used and unused) (e) Counter foils (f) Ballot papers (g) Elections marked copy register. In his submissions before this Court, Mr Ndamberi, counsel for the petitioner, argued that without these materials the witnesses would not be able to prove that they were voters in this constituency; the petitioner would be unable to lead evidence about the alleged misconduct of the that the Petitioner would not be able to cross-examine witnesses relating to the number of votes cast. Mr Ndamberi closed his submissions by arguing that rule 9 (supra) to deliver to the Court the aforesaid missing documents not less than 48 hours before trial. Mr Ngatia, counsel for the 2 nd respondent, submitted that his client too
Ngethe v Njeru & another (No 2) (Visram J) would suffer prejudice should this trial proceed without the relevant documents. For example, he argued, that in the absence of the Election Register, it would not be possible to demonstrate whether the voter had a right to vote in that Constituency. Without items (b) and (c) of the list of missing documents, he submitted that it would not be possible to examine witnesses on the incidents recorded. He agreed with Mr Ndamberi that these documents to the Court before trial, and without them this trial cannot proceed. th June, 06, Mr Kulecho, counsel for the st of the Rules (under which this application has been brought) do not permit the Court to make the orders sought, and to that extent this application was incompetently before the Court. He submitted that there were indeed no rules provided for the eventuality before the Court presently. In his view, the petition cannot be said to be untriable simply because election documents are unavailable. For example, he argued, that the petitioner does not pray for recount of votes, nor for the scrutiny of votes, and hence the absence of votes is not fatal. In his view, the petition was based mainly on allegations of bribery and corrupt practices before the elections, and is unrelated to the missing documents. in Court, I believe the issue essentially before this Court is whether this trial can and should proceed in the absence of documents and materials required by rule 9 of the rules to be placed before the Court, and if it cannot, who should bear the costs of the petition so far. leave a litigant without a remedy. Rules 8 and 9 of the Rules require certain parties to do certain things. If those things are not done, or cannot be done, the Court can certainly invoke its original and inherent powers to make such orders as are necessary for the ends of justice, or to prevent abuse of the process of the court. Election Offences Act and several irregularities and malpractices set out in the petition of things and events that occurred both before the day of elections and on the day itself. Paragraphs 9 to 24 of the petition outline allegations of irregularities before the polling day, while paragraphs 289
290 (08) 3 KLR (EP) to 3 allege events that took place on the polling day. Having read the petition in its entirety, and having considered the nature of with the contention of the petitioner, supported by the 2 nd respondent, that this case cannot be heard and determined in a fair and just manner, in the absence of those vital documents required by law to be placed before this Court 48 hours before the hearing of the petition. The materials that are with the petitioner that in the absence of these materials, it is not possible for him to properly prosecute this petition, as he would be unable to say with certainty whether the witnesses were voters in that Constituency; he would be unable to lead evidence about the alleged misconduct of nd respondent would not be able to examine witnesses regarding the incidents and events recorded in the missing documents, and whether the voters had indeed the right to vote in that Constituency. Although Mr Kulecho has argued that the petitioner does not seek a recount or scrutiny of votes, it is important to note that a recount is a remedy available, and for the Court to order so, in appropriate circumstances. In any event, votes (ballot papers) were not the only item lost. It is only one of the many items missing. this trial cannot proceed in the absence of the documents and materials lost, and I so order. With regard to costs, the blame here lies squarely with the st respondent in whose custody these documents were placed, and because of whose negligence they disappeared. Accordingly, I order that the st respondent bear the costs of all the parties to this petition.